The Walls have e-Ears

Electronic communications are causing headaches for lawyers and clients alike

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The telecommunications revolution has been a boon for lawyers in many respects, making research and communication exponentially faster and easier than it was a mere decade ago. But, as any practitioner knows, for every problem solved by our advancing technologies, new ones are created. The speed and ease with which lawyers and clients can communicate with each other and with third parties by email, instant message and text can lure us into thinking of these communication methods as analogous to in-person or phone conversations. But electronic communications are different in one crucial respect: they’re automatically recorded. This creates two problems. First, the occasional careless remark over email or instant message may constitute a waiver of attorney-client privilege. Second, the volume and scope of materials available in discovery becomes so vast that it’s easy to mistakenly violate the discovery rules, potentially scuttling your case.

The Prince and the Toddler A recent California case[1] shows how stray remarks online can greatly undermine a case by destroying attorney-client privilege. In the mid-2000s, Stephanie Lenz posted a short video on YouTube of her toddler dancing to Prince’s Let’s Go Crazy. The video was popular, eventually coming to the attention of Universal Music Corporation, which owned the rights to the song. In June 2007, Universal sent a takedown notice to YouTube alleging that the video infringed on its copyright. YouTube complied. Lenz sued Universal under Section 512(f) of the Digital Millenium Copyright Act (DMCA) for “knowingly materially misrepresenting ... that her video infringed the copyright. At issue ... was whether Universal knew or should have known that Lenz’s video didn’t infringe its copyright, and whether and to what extent Lenz was injured by Universal’s actions.”[2]

Electronic Frontier Foundation (EFF), an organization dedicated to advancing consumer rights and freedoms on the Internet, represented Lenz in the case. Before and during the litigation, Lenz made a few statements to third parties online (for example, in emails and Gchats) about conversations she had with EFF. Unfortunately, communicating with third parties about conversations between a client and lawyer waives privilege with respect to the subject matter of those conversations. This means that a single, innocuous statement revealing limited information doesn’t just create a fault line in the privilege wall that blocks a lawyer’s communications with her client from the outside world—it has the potential to take down the whole wall if the identified “subject matter” is broad enough. Unfortunately for Lenz, her statements, though mostly small, covered a lot of topics.

The first topic on which Lenz waived privilege had to do with her and EFF’s motives for pursuing the case. She emailed a friend that EFF was “very, very interested in the case” and was “salivating over getting their teeth into [Universal] yet again.” She also emailed her mother to explain that she “couldn’t say much,” but EFF was planning a “publicity blitz and/or a lawsuit against Universal.” Though Lenz argued that these statements bore only on EFF’s motives for taking the case pro bono, Universal successfully argued that Lenz’s motives and EFF’s were too intertwined, opening up the entire subject area of motives. Though the lawsuit is ongoing, the conversations rendered discoverable by Lenz’s statements could have disastrous effects on her ability to show damages. The court could find that she sued because Universal’s overreach annoyed her or because EFF wanted to take a principled stand against Universal, rather than because she suffered actual harm.

Lenz also made a number of statements to third parties about factual matters at issue. Via Gchat, she told a friend that her lawyer suggested that Prince “bullied” Universal into going after her, and that there was “ample public proof that he wants everyone targeted, no matter whether they’re actually guilty of anything.” (Though we don’t know whether Lenz’s statement is accurate, Prince has been involved in a number of high-profile incidents in which he aggressively enforced his perceived copyright interests.) She Gchatted another friend to the effect that her lawyer believed Prince was forcing Universal to pursue the lawsuit rather than settle. The court found that this opened the door to discovering all manner of communications between Lenz and her counsel at EFF regarding Prince’s role in the suit.

Most damagingly, Lenz made two statements in two highly public forums that directly undermined the basis of her case. Responding to an online commenter on her blog, she wrote “You’re right . . . Mine’s not a ‘fair use’ case at all.” Though she clarified that it was “something different” that she’d never heard of before and tried to explain to the court that the statement was based upon misunderstanding her lawyer, the court nonetheless found that this damaging admission was admissible to the record and had significant implications for the integrity of her privilege. Equally problematic, she told a reporter at an online magazine that her lawyers “came to the conclusion that I did not infringe the copyright and eventually we decided to file the lawsuit”—which Universal pounced upon as proof refuting Lenz’s contention that the takedown notice was clearly frivolous. After all, they argued, Lenz and EFF themselves had to put time and effort into analyzing whether the video infringed the copyright! Of course, that is not necessarily the import of Lenz’s statement: “came to the conclusion” can mean “realized” rather than “determined after rigorous analysis,” and there are many reasons why someone might only “eventually” decide to file a lawsuit that have no bearing on the strength of that person’s case. But by making the statement, Lenz needlessly provided Universal with ammunition, and allowed them to discover all kinds of communications between Lenz and her lawyer that could severely undermine any suggestion that the takedown notice was obviously baseless.

Lenz’s trouble stems from the fact that electronic communications resemble casual, private conversations in their speed and ease, but create a searchable record. Though the prudent practitioner will admonish her clients on the importance of discretion when speaking to third parties, the human need to gossip, crow or vent means that a few short, stray comments are likely to leak out to friends and family in many cases. People simply aren’t geared to think that letting some tidbit slip to a friend could blow a hole in one of their most valuable legal protections. Fortunately, these indiscretions are usually in some format that creates no record, and a person’s friends certainly aren’t inclined to run around reporting them to opposing counsel—the words just disappear into the air. When they’re made electronically, though, they linger, ready to undermine the client and her lawyer should some clever or lucky opponent stumble upon them. This is especially likely in trust and estate litigation, in which opponents often know each other outside the context of the dispute and will trade barbs as the case goes on. Clients need to be told to keep their lips sealed—and above all to make sure they never discuss their case in writing, no matter how ephemeral the particular medium might seem.

The Age of e-Discovery Even when a given electronic communication isn’t itself problematic, the fact that these communications are automatically preserved expands the scope and breadth of discovery so widely that it becomes easy to make a mistake. A recent Duke Law Review article[3] by Dan H. Willoughby Jr., Rose Hunter Jones and Gregory R. Antine shows that the number of sanctions for e-discovery errors is at an all-time high, and reliably goes up every year. Sometimes the sanctioned offense is from a failure to produce an electronic document or communication—but often it’s for failure to preserve the document. And the consequences can be serious: sanctions vary from mere slaps on the wrist, like limiting closing statements or granting supplemental discovery, to assessments of multimillion dollar damages or outright dismissal of the underlying case.

All of which is to say that lawyers, like clients, are having trouble adapting to the new digital era. Whenever we send an email, instant message or text, it creates a record that’s potentially discoverable. Failing to produce the result, assuming it’s not privileged, is the same as failing to produce any other document; and deleting it is the same as destroying any other document. Practitioners need to keep this in mind when they withhold or destroy electronic documents and communications—and the best practice, given the headaches that such documents can create, may be to create as few of them as possible.

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